[Federal Register Volume 61, Number 61 (Thursday, March 28, 1996)]
[Rules and Regulations]
[Pages 13760-13762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7592]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Statement of policy.
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SUMMARY: Since August of 1990, the Agency has continued its oversight
of Summer Travel/Work programs, notwithstanding suggestions that the
Agency is in fact without statutory authority to conduct such programs
as currently configured. The Agency hereby announces its acceptance, as
statutorily sound, of four Summer Travel/Work programs. A two year
period of additional review of a fifth program is also hereby announced
and adopted.
EFFECTIVE DATE: This policy statement is effective March 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information
Agency, 301 4th Street, S.W., Washington, D.C. 20547; Telephone, (202)
619-6829.
SUPPLEMENTARY INFORMATION: In February of 1990, the General Accounting
Office (``GAO'') issued its report entitled ``Inappropriate Uses of
Educational and Cultural Exchange Visas.'' This report specifically
identified Summer Travel/Work programs designated by the Agency for the
past twenty-five years as an example of programs operating outside of
the statutory parameters set forth under the Mutual Educational and
Cultural Exchange Act of 1961 (Fulbright-Hays Act.) As currently
configured, Summer Travel/Work programs permit foreign university
students to enter the United States during their summer months for the
purpose of travel and the pursuit of employment opportunities wherever
they may be found. Approximately 16,000 foreign university students to
charges of inappropriate use of the Exchange Visitor Program and
brought about, in March of 1993, the promulgation of new and
comprehensive regulations governing exchange activities. These
regulations, in turn, resulted in changes to the operations of flagship
exchange programs and other programs of long-standing and venerable
reputation. Underlying this policy and regulatory review was the
Agency's identification of the core components of an exchange activity.
These components--selection, screening, orientation, placement,
monitoring, and the promotion of mutual understanding--define what an
exchange is and whether one is actually occurring.
The use of these components in a review of the Summer Travel/Work
programs demonstrates clearly why the Agency has determined that it
lacks sufficient authority to continue the programs as currently
configured. Today, five organizations conduct Summer Travel/Work
programs pursuant to two substantially different program designs. Four
of the five programs arrange all details of the program including
prearranged employment and accommodations. The remaining program,
accounting for approximately 12,000 of all participants, does not make
advance arrangements for employment or accommodations. Participants in
this program are left to their own devices in securing both employment
and accommodation.
Given the design and operation of these four programs and their
selection, screening, orientation, placement, and monitoring of program
participants, the Agency is satisfied that statutory conformity is
possible. Accordingly, the Agency has determined that these four Summer
Travel/Work programs should be allowed to expand both their number of
program participants and the countries from which they are selected.
Program guidelines have been developed and the four programs currently
selecting, screening, orienting, placing, and monitoring their program
enter each year for this purpose.
The 1990 GAO report was the catalyst for what has become a five
year debate regarding the public diplomacy value of Summer Travel/Work
programs and the Agency's legal authority to continue them under the
aegis of the Fulbright-Hays Act. The debate surrounding these programs
occurs entirely along the fault lines that necessarily underlie the
intersection of law and policy. The legal considerations of this debate
are straightforward, while the policy considerations are less so.
Statutory Considerations
The Immigration and Nationality Act, as amended, sets forth at 8
U.S.C.
[[Page 13761]]
1101(a)(15)(J) an alien's statutory eligibility for entry into the
United States on a J visa. The J visa was created, as a provision of
the Fulbright-Hays Act, to facilitate educational and cultural exchange
activities. Pursuant to the provisions of 1101(a)(15)(J), an exchange
visitor is defined as:
(J) an alien having a residence in a foreign country which he
has no intention of abandoning who is a bona fide student, scholar,
trainee, teacher, professor, research assistant, specialist, or
leader in a field of specialized knowledge or skill, or other person
of similar description, who is coming temporarily to the United
States as a participant in a program designated by the Director of
the United States Information Agency, for the purpose of teaching,
instructing or lecturing, studying, observing, conducting research,
consulting, demonstrating special skills, or receiving training and
who, if he is coming to the United States to participate in a
program under which he will receive graduate medical education or
training, also meets the requirements of section 212(j), and the
alien spouse and minor children of any such alien if accompanying
him or following to join him:
Given this statutory definition of an exchange participant, the GAO
concluded that persons entering the United States to participate in
Summer Travel/Work programs did not fall within the statutory
parameters of the Fulbright-Hays Act and the Immigration and
Nationality Act. Specifically, the GAO opined that the Summer Travel/
Work programs do not require participants to engage in those activities
set forth in both Acts.
In response to this GAO report, the Agency published a Statement of
Policy and Notice in the Federal Register on August 13, 1990 (55 FR
32906.) This notice advised the public and those organizations
facilitating Summer Travel/Work programs that, in light of the GAO
report, a legal and policy review of the programs would be undertaken.
This notice further advised that upon a favorable determination
regarding the foreign policy value of these programs, the Agency would
consider whether regulations could be drafted to conform the programs
with existing law. The notice also advised that, in the alternative,
the Agency might pursue legislation to specifically authorize the
continuation of the programs.
As the debate regarding statutory authority began, the Agency
received two well-reasoned and thorough legal memoranda suggesting the
Agency did in fact possess adequate legal authority to facilitate
Summer Travel/Work programs. These memoranda proved unpersuasive.
Accordingly, the Agency remained unconvinced that it possessed
sufficient statutory authority to facilitate Summer Travel/Work
programs and so advised the Congress by letter dated June 10, 1991.
Additional support for this Agency determination was subsequently
provided by a GAO Office of General Counsel letter opinion dated July
8, 1992. This letter opinion set forth a review of both the statutory
language and legislative history of the Fulbright-Hays Act. The GAO
affirmed its legal opinion set forth in the 1990 report but suggested
that the Agency may be able to bring Summer Travel/Work programs into
statutory compliance, stating:
Notwithstanding our conclusions, given the broad authority an
agency has in promulgating regulations and implementing an activity
conferred upon it by statute, Powell v. Schweiker, 688 F. 2d 1357,
1360-61 11th Cir. 1982), we think USIA could revise its regulations
to establish trainee, summer student travel/work and international
camp counselor programs that are consistent with the J-visa statute.
We emphasize that any determination about the propriety of these
programs must begin with the J-visa statute. If a program involves
individuals whose status is comprehended by the categories set forth
in the J-visa statute, and the statute authorizes the activity that
such individuals will pursue, then the program would be consistent
with the intent of the J-visa statute. These categories and
activities intend an educational or cultural purpose.
Thus, the Agency laid to rest the question of whether it possessed
sufficient statutory authority to continue Summer Travel/Work programs
as currently configured. Having determined that it did in fact lack
such authority, the Agency turned its attention to an examination of
the policy and public diplomacy aspects underlying these activities.
Policy Considerations
Summer Travel/Work programs have been designated by the Agency for
over twenty five years. When these programs began, a strict reciprocal
element mandated that the number of United States students outbound
from the United States approximate the number of foreign students
inbound. Annual consultations with the program's sponsoring
organizations were held and the number of participants for that year
established. An additional requirement limited participation to foreign
students lacking sufficient funds to enter the United States as
tourists. Periodic reminders of this underlying policy were also
transmitted to sponsoring organizations. The policy underlying these
two requirements attempted to (i) ensure no adverse domestic labor
market impact resulted from the activity; and (2) that only those
persons otherwise financially unable to visit the United States would
benefit from this opportunity.
These original policy objectives have been seriously eroded with
the passage of time. Exchange programs facilitated under the auspices
of the Fulbright-Hays Act must, as a matter of policy and law, have an
underlying educational or cultural programmatic component which
promotes the Act's raison d'etre of mutual understanding. Critics
generally suggest that Summer Travel/Work programs do not possess an
educational or cultural exchange component even when such terms are
given their broadest of interpretations. Conversely, advocates of these
programs suggest that ``experiential'' learning, whereby the
participant gains insight into the American lifestyle and culture
through travel and employment, does in fact fulfill the expected
programmatic educational or cultural component.
The Agency's interpretation of what is an acceptable educational or
cultural programmatic component is often quite broad. However, the
Agency has determined that it is unable to adopt the concept of
``experiential'' learning as sufficient legal justification, in and of
itself, for an exchange activity under the Fulbright-Hays Act. To do
so, would suggest that any time an alien enters the country as a
visitor for business or pleasure or as a temporary worker, an
educational or cultural exchange occurs.
In light of this determination, and pursuant to the discussion set
forth below, the Agency is willing, in general, to accept,
``experiential'' programs that otherwise incorporate those programmatic
components common to all other exchange activities designated by the
Agency.
The Components of Exchange
Since 1990, the Agency has engaged in an on-going review of the
policy and public diplomacy considerations underpinning exchange
activities. This review has proven useful in responding participants
have agreed to abide by these guidelines in the absence of program
specific regulations.
Because the remaining Summer Travel/Work sponsor does not operate
its program in the manner that the Agency has determined would meet all
threshold statutory requirements, the Agency is unable to allow this
program to expand in size or scope. Thus, this sponsor will continue to
be limited to the numerical program size at which it operated when
statutory deficiencies were identified in February of 1990. In similar
fashion, this sponsor will also be
[[Page 13762]]
limited to recruitment in only those countries in which it was
operating Summer Travel/Work programs in 1990.
The Agency has agreed to permit the continued operation of this
program under these terms notwithstanding its determination that such a
program design continues to suffer certain statutory deficiencies. As
agreed with the sponsor, the Agency will allow a two year period of
continued study of this matter for the purpose of addressing the policy
considerations arising from possible adverse domestic labor market
impact due to the lack of preplacement. The Agency will seek the advice
and counsel of the U.S. Department of Labor regarding labor market
considerations and will continue this additional period of review until
March 1, 1998.
List of Subjects in 22 CFR Part 514
Cultural exchange programs.
Dated: March 22, 1996.
Les Jin,
General Counsel.
Guidelines for Summer Work/travel Programs
In lieu of specific programmatic regulations governing the
administration of Agency-designated Summer Travel/Work programs, the
guidelines set forth below are hereby adopted by the Agency and
shall be binding upon all newly designated programs and the existing
Summer Travel/Work programs operated by the American Institute for
Foreign Study, YMCA InterExchange, and Camp Counselors USA. These
guidelines may be amended by the Agency at any time and shall remain
in full force and effect until rescinded or Superseded by duly
promulgated regulations.
(a) Introduction. These guidelines shall apply to the above
described program sponsors and their administration of exchange visitor
programs under which foreign university students are afforded the
opportunity to travel and pursue employment in the United States for a
four month period corresponding with their summer vacation.
(b) Participant Selection and Screening. In addition to satisfying
the requirements set forth at Sec. 514.10(a), sponsors shall adequately
screen all program participants and at a minimum:
(1) Conduct an in person interview; and
(2) Ensure that the participant is a bona fide post-secondary
school student is his or her home country; and
(3) Ensure that not more than ten percent of selected participants
have previously participated in a summer travel/work program.
(c) Participant Orientation. Sponsors shall provide participants
prior to their departure from the home country information regarding:
(1) The name and location of their employer; and
(2) Any contractual obligations related to their acceptance of paid
employment in the United States.
(d) Participant Placements. Sponsors shall not facilitate the entry
into the United States of any program participant for whom an
employment position has not been arranged.
(e) Participant Compensation. Sponsors shall ensure that program
participants receive pay and benefits commensurate with those offered
to their American counterparts.
(f) Monitoring. Sponsors shall provide:
(1) All participants with a telephone number which allows 24 hour
immediate contact with the sponsor; and
(2) Appropriate assistance to program participants on an as needed
emergency basis.
(g) Placement report. In lieu of listing the name and address of
the participant's pre-arranged employer on the form IAP-66 sponsors
shall submit to the Agency a report of all participant placements. Such
report shall reflect the participant's name, place of employment, and
the number of times the participant has previously participated in any
summer travel/work program. Such report shall be submitted semi-
annually on January 30th and July 30th of each year and shall reflect
placements made in the preceding six month period.
(h) Unauthorized activities. Placement as domestic employees in
United States households is expressly prohibited.
[FR Doc. 96-7592 Filed 3-27-96; 8:45 am]
BILLING CODE 8230-01-M
